US Congress to look for areas of consensus on copyright law — At a World IP Day event organized by the US Copyright Office and the Copyright Alliance, House Judiciary Chairman Goodlatte announced the next phase in the copyright review process that began three years ago. After identifying the numerous issues the Committee has examined in that time, he said in the weeks ahead, the Committee would be identifying areas of potential reform and convening stakeholders for further work on those areas.

Google Accused of Enabling Photography Piracy — Getty Images has filed a complaint against Google to the EU’s antitrust commission regarding Google Images, which, since 2013, “displays full-screen slideshows of high-resolution copyrighted images.” Getty alleges that the service siphons traffic from photographers and publishers and erodes the ability to license visual works.

The Android Administration — The Intercept illustrates “Google’s remarkably close relationship with the Obama White House.” One example shows “55 cases of individuals moving from positions at Google into the federal government, and 197 individuals moving from positions inside the government to jobs at Google.”

US News Editors Find it Increasingly Difficult to Defend the First Amendment — While the internet has opened opportunities to reach new audiences, it has also hurt the ability of news organizations to sustain themselves. And that spells trouble for freedom of the press. “‘Newspaper-based (and especially TV-based) companies have tougher budgets and are less willing to spend on lawyers to challenge sunshine and public records violations,’ one editor acknowledged. Another editor declared, ‘The loss of journalist jobs and publishers’ declining profits means there’s less opportunity to pursue difficult stories and sue for access to information.’ The costs of litigation constrain organizations.”

EU digital chief calls on YouTube to pay music artists more — “The EU’s digital chief waded into a growing fight between record labels and YouTube, calling on the Google-owned video site to hand over more revenue to rights holders. Andrus Ansip, who is overseeing an overhaul of the bloc’s copyright rules, said the YouTube’s comparatively small payments to artists gave it an unfair advantage over rivals such as Spotify, the Swedish streaming service.”

How the FCC’s ‘Set-Top Box’ Rule Hurts Consumers — The CEO of Roku weighs in against the FCC’s set-top box proposal. “The proposed regulation would—as we say in the industry—’decouple the user interface’ from the video and data itself. This would allow a company like Google to do to the TV what it did on the Web—build an interface without the ‘inconvenience’ of licensing content or entering into business agreements with content companies such as ABC, FOX, HBO, or video distributors like pay TV operators. The unintended consequences of circumventing these kinds of arrangements are likely to include increased costs for consumers, reduced choices and less innovation.”

Here’s why the music labels are furious at YouTube. Again. — A frank discussion with RIAA head Cary Sherman about the challenges the recording industry still face. Says Sherman, “When you compare what we get when we get to freely negotiate, with a company like Spotify, vs. what we get when we are under the burden of an expansively interpreted ‘safe harbor,’ when you’re negotiating with somebody like YouTube, you can see that you’re not getting the value across the platforms that you should.”

The FCC Should Drop Its Proposed Rules For Set-Top Boxes — “It is difficult to see who would benefit from the proposed rules. Certainly programmers would not benefit. Those who prefer no set-top box can already distribut[e] programming directly to consumers over the Internet. Few manufacturers of set-top boxes would benefit. With proprietary devices outlawed, only generic set-top boxes would be lawful. Manufacturers that can produce the devices more cheaply might do better. But manufacturers that specialize in customizable proprietary software and ever better security systems would have a diminished market. Cable and satellite distributors would not benefit because they no longer differentiate as strongly their product in terms of security and privacy from purely on-line services. Consumers would not be better off. The range of video options would be diminished, and the security and privacy currently afforded by set-top boxes would be lost.”

Facebook takes on its freebooting problem with Rights Manager — When Facebook unveiled its new video platform, it quickly became a magnet for “freebooting”, where users uploaded YouTube videos without authorization to the service. Freebooting is a particularly acute problem for the emerging group of YouTube-native creators, who have taken advantage of the platform to build audiences for their work, only to see those efforts siphoned off by piracy. So it is welcome news that Facebook has announced the implementation of a tool that will allow creators to help prevent copyright infringement.

Last month, the Supreme Court denied review of a cert petition in DC Comics v. Towle, regarding whether the Batmobile can be protected by copyright. This in itself isn’t news—the Supreme Court only grants roughly 5% of all petitions it receives. But the subject matter of this litigation brought a fair amount of attention, so let’s take a quick look at last September’s Ninth Circuit decision, which now stands.

This litigation begins, as the court recounts, with defendant Mark Towle, who runs a business called Gotham Garage. Among other things, his business sells replicas of the Batmobile, as depicted in the 1966 television show and 1989 motion picture. He also sells kits which allow customers to modify their cars to look like these Batmobiles. DC Comics, the publisher of comics featuring Batman, sued Towle for copyright infringement, trademark infringement, and unfair competition for manufacturing and selling the replica Batmobiles. Both parties moved for summary judgment, and in a 2013 order, the district court granted summary judgment in favor of DC Comics on the copyright claim, finding that the Batmobile “was a character entitled to copyright protection.” On appeal, the Ninth Circuit affirmed, concluding that “the Batmobile character is the property of DC, and Towle infringed upon DC’s property rights when he produced unauthorized derivative works of the Batmobile.”

The most important question facing the Ninth Circuit was whether the Batmobile could be protected as an independent character despite not having a consistent appearance in all works. The car that appeared in the 1966 television show, after all, looked quite different from the car in the 1989 motion picture. But the court did not find this an impediment to copyright protection. It observed that “district courts have determined that James Bond, Batman, and Godzilla are characters protected by copyright, despite their changes in appearance.” And in each instance, it said,

[C]ourts have deemed the persistence of a character’s traits and attributes to be key to determining whether the character qualifies for copyright protection. The character “James Bond” qualifies for copyright protection because, no matter what the actor who portrays this character looks like, James Bond always maintains his “cold-bloodedness; his overt sexuality; his love of martinis `shaken, not stirred;’ his marksmanship; his `license to kill’ and use of guns; his physical strength; [and] his sophistication.” Similarly, while the character “Godzilla” may have a different appearance from time to time, it is entitled to copyright protection because it “is always a pre-historic, fire-breathing, gigantic dinosaur alive and well in the modern world.”

Having reviewed the existing precedent, the Ninth Circuit synthesized a three-part test for determining when a character like the Batmobile, which may span multiple works and vary in appearance, can be independently protected by copyright.

First, the character must generally have “physical as well as conceptual qualities.” Second, the character must be “sufficiently delineated” to be recognizable as the same character whenever it appears. Considering the character as it has appeared in different productions, it must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance. Third, the character must be “especially distinctive” and “contain some unique elements of expression.” It cannot be a stock character such as a magician in standard magician garb. Even when a character lacks sentient attributes and does not speak (like a car), it can be a protectable character if it meets this standard.

The Ninth Circuit then applied this test to the Batmobile, and concluded that the Batmobile met the standard. Its “bat-like appearance” is a consistent theme throughout its appearances in comics, movies, and television shows, making it recognizable as the same character whenever it appears. The character displays consistent, identifiable character traits and attributes; says the court, “No matter its specific physical appearance, the Batmobile is a ‘crime-fighting’ car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains,” and it “always contains the most up-to-date weaponry and technology.” Finally, the court found the Batmobile to be “especially distinctive,” noting “it is not merely a stock character.” Having established that the Batmobile is protected by copyright, it was short work to conclude that Towle’s Batmobile replicas infringed on DC’s copyright.

The Ninth Circuit’s holding is consistent with longstanding business practices. Many derivative works, like sequels or tie-ins, rely on the same characters but share no other similarities in terms of plot or expression of existing works.16Benjamin A. Goldberger, How the “Summer of the Spinoff” Came to Be: The Branding of Characters in American Mass Media, 23 Loy. L.A. Ent. L. Rev. 301, 302 (2003) (“Characters are central to the most common types of recycling and reuse in the entertainment business.”); see also 1 Nimmer, supra note 16, § 3.04[A]. As DC has done with the Batmobile and other Batman characters, it is common practice to license characters for use in new works.17See, e.g., Burroughs v. Metro-Goldwyn-Mayer, Inc., 683 F.2d 610, 611-12 (2d Cir. 1982) (involving license granting rights to produce original story with the character Tarzan); Fleischer Studios, 772 F. Supp. 2d at 1140 (referencing agreement that transfers interest in, inter alia, “all characters contained therein”). Such practices rely upon certainty, so having courts provide consistent and stable rules facilitates beneficial economic and cultural activities with these characters.

Benjamin A. Goldberger, How the “Summer of the Spinoff” Came to Be: The Branding of Characters in American Mass Media, 23 Loy. L.A. Ent. L. Rev. 301, 302 (2003) (“Characters are central to the most common types of recycling and reuse in the entertainment business.”); see also 1 Nimmer, supra note 16, § 3.04[A].

Hacking Democracy: Google/YouTube Proxy Group “Fight For The Future” Crashes US Copyright Office Website During Crucial Comment Period — Last week was the US Copyright Office’s deadline for submitting public comments on Section 512 (the DMCA safe harbor and notice-and-takedown process). On the last day, dark money group Fight for the Future ran a campaign that resulted in over 90,000 form comments being submitted, showing how easy it is for anti-democratic groups to dress up in populist clothing and disrupt legitimate policy processes. 90,000 copies of a form comment submitted by individuals identifying themselves as “aaaaaa” or “fsdafsadfsdafsad” add nothing of substance to the study and strain the (already limited) resources and expert staff at the Office, who are dedicated to ensuring public and accountable processes.

Talking Copyright and the Digital Single Market at the Fordham IP Conference — Last week, the Fordham IP Institute held its annual conference. Here, Stan McCoy shares his remarks from the conference on the European Commission’s push for a “Digital Single Market” in the EU. Says McCoy, “At Fordham, I argued that caution is warranted before the EU institutions tinker with the DNA of copyright. The data supports that approach: research paid for by the European Commission confirms that over 90% of people are finding what they want online, and fewer that 4% try to access services from another member state. It bears repeating that 7 million jobs in Europe’s core creative industries depend on copyright. Little modifications to copyright, one after another, have the potential to weaken the foundations that allow those people to earn a living and support their families in these industries. The EU Charter of Fundamental Rights requires that intellectual property be protected – another reason for caution.”

Instagram and the Cult of the Attention Web: How the Free Internet is Eating Itself — “We want our web and we want it for free. However, the inconvenient truth is that there is a cost to doing business and at some point companies have to make money. And so we sacrifice the magic. We devalue content and products by refusing to pay for the work it takes to create and maintain them. We are satisfied wading through poorly designed, ad-based experiences. And we allow our most precious resource, our time, to become a commodity to be traded, sold and manipulated. Our data is mined, our privacy discarded and our actions tracked all in the name of more targeted advertising.”

Googling Hollywood’s Next Epic Disaster — “The FCC calls it the ‘unlock the box’ proposal. Critics call the FCC’s pending action to deregulate the market for cable TV set top boxes a disaster for Hollywood, niche cable channels, producers and distributors of indie movies and TV, and many others.”

Katy Perry, Christina Aguilera sign letter calling for changes to copyright law — “Hundreds of artists, songwriters, managers, and other players in the music industry are calling on the U.S. Copyright Office to make what they consider to be long overdue changes to the Digital Millennium Copyright Act, a law they say is not only out-of-date, but detrimental to artists and the future of the industry.”

Guadamuz on the Monkey Selfie — Andrés Guadamuz (University of Sussex) looks at the copyright issues of the (in)famous monkey selfie from a UK and European perspective, concluding that, “Under current originality rules, David Slater has a good copyright claim for ownership of the picture.”

Video Creators Are Frustrated With Facebook’s Antipirating Efforts — Facebook has seen staggering growth in the amount of users watching videos on its platform, but its antipiracy efforts have not kept pace. This is especially frustrating for individual YouTube creators, who see their own videos “freebooted” onto Facebook, hurting their ability to earn revenue.

Web TV Company Not Entitled to License to Stream Content — A federal district court in Illinois held that FilmOn X does not qualify for the cable compulsory license in the Copyright Act, making it the third court to say as much, and making the sole court to hold otherwise even more of an outlier.

Protecting copyright without stifling innovation — Paul Doda writes, “[C]ertain hosting platforms that did not exist in 1998 have structured their businesses to exploit the DMCA cloak from liability. They do so by taking material down while at the same time rendering the notices meaningless by encouraging the reappearance of the same infringing works from a sea of ready replacements. These structural infringers cannot be counted on to voluntarily adopt anti-piracy measures, such as the reasonable filtering techniques currently being deployed by other platforms, because that would cripple their free-riding business model, which depends on their users’ posted infringements to sell subscriptions and generate advertising revenue.”

Did pirates kill ‘Hannibal’? — Only so many names can fit onto a marquee, film poster, TV show’s credits or in a movie’s trailer. Maybe the millions of people who illegally download movies and TV shows are thinking only of the top-billed stars, excusing their actions with the notion that one viewing will not do much harm to a superstar. But on a set, every last crew member and creative — right down to the person who designed that poster or edited that trailer — is affected if the fruits of their labor are stolen.”

Creative Strategies for Beefing up Copyright Enforcement — Michael Carroll reviews a paper by professor Eric Priest, Acupressure: The Emerging Role of Market Ordering in Global Copyright Enforcement. In his paper, Priest examines two case studies which use market pressure, one through voluntary initiatives and the other through state unfair competition laws, to minimize copyright infringement. He then abstracts the key elements that make these types of strategies for copyright enforcement work.

Govt has ‘bungled’ copyright costs — When the Trans-Pacific Partnership was being finalized, the New Zealand government concluded that the changes it would need to make to its copyright law to comply with the agreement would cost the country $55 million. Now, economist Dr. George Barker is telling the government that estimate is incorrect. “Dr. Barker said that estimate was based on erroneous research in 2009 by an Australian economist. Officials were unable to provide access to the data behind the estimate, and Dr. Barker said one possibility was a decimal point could have been put in the wrong place.”

“Dancing Baby” Appeals Court Decision Stands Minus the “Fair Use” Algorithms — This week, the Ninth Circuit refused EFF’s petition to overrule existing precedent and impose an unworkable objective standard on misrepresentation claims under Section 512(f). Or, to put it simply, you don’t need a lawyer to stop your work from being pirated online. Hollywood Reporter has more details on the latest in Lenz v. Universal Music, which also includes an amended opinion.

An Awareness Crusade Against the Online Piracy of Books — Author Rhonda Rees was shocked when she discovered pirated copies of her books available online, but soon learned that this was a problem that plagued all authors and the publishing industry. So, Rees says here, “I made it my mission to figure out all that I could about this issue of online book piracy, to become more knowledgeable and aware, and to open up a dialogue between authors, law enforcement, policy makers and the public.”

Dead Kennedys frontman goes after the modern music industry — “As a self-described DIY band, and the only U.S. band that can boast of having a gold record distributed on an independent label, [Dead Kennedys] sits at the crux of technology, distribution, and rights issues that are bringing vehement change to today’s music industry. A change that is, according to [East Bay] Ray, not for the better. Listing the monopolies as Google (with YouTube), Spotify, Apple, Pandora, and Amazon, Ray discusses the way their business models are systemically aborting creativity and diversity from the collective musical commons.”

Google is strip-mining the world’s culture — Author Amanda Foreman cautions that high principles are at stake in the Authors Guild v Google litigation, currently awaiting Supreme Court review of a cert petition. “I know it’s difficult,” she says here, “to imagine the toxic damage caused by Google’s strip-mining of the world’s creative content — especially since right now it offers such a pleasurable “all-you-can-eat” free buffet. But there it is: the world makes, Google takes. And takes.”

An Interview with Mickey Osterreicher, General Counsel of the NPPA — PetaPixel interviews Osterreicher, who handles all legal affairs and policy for the National Press Photographers Association. “Most visual journalists view our profession as a calling. No one really expects to become wealthy in this line of work, but most do expect to earn a fair living, support themselves and their family, and contribute to society. Copyright infringement reduces that economic incentive dramatically. This in turn may abridge press freedoms by discouraging participation in this field. It also devalues photography as both a news medium and art form, thereby eroding the quality of life and freedom of expression that are part of the foundation of this great nation.”

SoundExchange Launches Public Search Website with Access to Industry’s Best ISRC Data — “A free service that provides 24/7 access to data, SoundExchange’s ISRC Search Site will help all parties through improved tracking and reporting of sound recording usage. The database includes nearly 20 million ISRCs reported to SoundExchange. The initiative will also help ensure fast, accurate identification of sound recordings, which will help music creators receive prompt, accurate and fair compensation from the digital services that use their music.”

Software Piracy Hurts Linux Adoption, Research Finds — The theory is that if the commercial product is easily available for free, people will choose that over lower cost or even free open-source alternatives. Thus, weak copyright protections and enforcement hurt open-source developers and independent creators.

NPPA and other visual arts associations release copyright small claims white paper — “These organizations have identified the creation of a small claims option to be their most urgent legislative priority before Congress. They assert that the cost and burden of maintaining a lawsuit in the only existing venue for hearing copyright infringement claims—federal district courts—is prohibitive and all too often leaves visual artists no way to vindicate their rights. They see a small claims process within the Copyright Office as providing a fair, cost-effective and streamlined venue in which they can seek relief for relatively modest copyright infringement claims.”

Hijacking the Special 301 Process: We will all suffer the consequences — As part of the Special 301 Process US trade negotiators identify foreign countries that are not living up to the IP obligations they’ve agreed to with the US. Unfortunately, recently some groups have been pushing to use it as a vehicle to weaken and dilute IP protections. Hugh Stephens explains more here.

That’swhatshesaid Didn’t Ask Permission Because They Didn’t Have To, Says Attorney — That’swhatshesaid is a show that criticizes the underrepresentation of women in American theater by performing only the female parts from a number of current plays. Attorneys for the performer and playwright responded to a cease and desist from the publishers of some of the plays used in the show by claiming fair use. Based on the facts as discussed here and in other news stories, my guess is that this indeed is a classic example of fair use.

One of the authors of the comic is Kyle Courtney, a copyright advisor at Harvard University. Courtney is also the originator of Fair Use Week, launching it in 2014.

Having said all this, it remains startling that the comic incorrectly states the Court’s holding in Campbell.

Campbell began when rap group 2 Live Crew created the song “Pretty Woman”, a bawdy take-off of Roy Orbison’s classic “Oh, Pretty Woman.” They initially sought permission from Orbison’s publisher, Acuff-Rose, but were denied. They released the song anyway, and Acuff-Rose sued.

2 Live Crew claimed the song was a parody, and thus a fair use, and the case went all the way up to the Supreme Court.

The comic walks through the Supreme Court’s analysis, but completely misstates the Court’s conclusion regarding the third fair use factor, which directs courts to look at “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”

According to the comic, “2 Live Crew’s copying of the original (e.g., the opening bass riff and first line of the Orbison song) was not deemed to be excessive to its purpose.”

Contrast this with what the Supreme Court actually said: “we express no opinion whether repetition of the bass riff is excessive copying, and we remand to permit evaluation of the amount taken, in light of the song’s parodic purpose and character.”

But this misstatement pales in comparison to getting the Court’s holding wrong. The comic concludes, “Overall, 2 Live Crew’s use of Pretty Woman was found to be a transformative fair use.” But that’s not at all what the Supreme Court said. It instead reversed the Sixth Circuit’s decision and remanded the case to the district court “for further proceedings consistent with [its] opinion”—that is, not ultimately deciding whether the use was fair or not.

If anything, the Court was leaning against fair use. Justice Kennedy filed a concurring opinion solely to express his doubts, saying

While I am not so assured that 2 Live Crew’s song is a legitimate parody, the Court’s treatment of the remaining factors leaves room for the District Court to determine on remand that the song is not a fair use. As future courts apply our fair use analysis, they must take care to ensure that not just any commercial takeoff is rationalized post hoc as a parody.

In fact, the two parties settled following the Supreme Court’s decision, with 2 Live Crew agreeing to a license with Acuff-Rose. According to a contemporary news account, Acuff-Rose said of the settlement, “That means we will be getting paid for the song.”

The above demonstrates the importance of care and accuracy when reading cases, as well as the potential pitfalls of relying solely on secondary sources, even from experts.

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.